Tag: unfair terms in consumer contracts Regulations

Unfair contract terms in the Consumer Rights Act

In a recent post we outlined the changes that took effect in sales and services legislation with the passing of the Consumer Rights Act [2015]. We are going to examine unfair terms in this post and your rights.

When you enter into a contract; as a buyer, seller or for a service; both parties must follow the terms set out in that contract. Probably the best way to ensure you do not have unfair terms is to take the time to read and terms & conditions of a contract you are going to enter into, to avoid problems later. However there is statutory protection against unfair terms.

 What are your rights to challenge unfair terms

Generally companies are free to use whatever contractual terms and conditions they consider to be reasonable, provided they are not in themselves unfair or contradict statutory law and provisions.  As a result of this being a new item of legislation the existing rules operate alongside the rules for a time. In effect until all new contracts were entered into under the Consumer Rights Act [2015]. The rules in relation to which legislation covers your contract are as follows:

  • For contracts entered into after 1st October 2015, these are governed by the Consumer Rights Act [2015]
  • For contracts entered into before 1st October 2015, these are governed by the Unfair Terms in Consumer Contracts Regulations (1999).

While these are two different pieces of United Kingdom legislation in effect over the same or similar issues and where one supersedes the other. Both are premised by a clear legal view that you are not bound by a standard term in a contract, with a seller or supplier if that term is judged to be unfair.

As a consumer, if you think a standard contact term is unfair to local authority trading standards department or to the Competition and Markets Authority (CMA) which replaced the Office of Fair Trading (OFT) as the regulator in April 2014.The CMA is empowered to investigate and ultimately can force a company to change its terms.

As an individual or corporate entity you also have the right to challenge a contract term if you think it’s unfair. However in this instance only the courts can rule whether a term is fair or unfair.

 Terms you can challenge

The Consumer Rights Act [2015] allows you the statutory right to challenge hidden fees and charges as the basis of the legislation is that key terms of a contract, including price, may be assessed for fairness unless they are both prominent and transparent.

This is a significant departure from the previous Unfair Terms in Consumer Contracts Regulations [1999] were these type of terms were exempt from a fairness test if they were written in plain language. Of course what is plain language is in itself a leading and ambiguous terms

Terms may be ruled as unfair where:

  • They are contrary to the requirements of good faith, meaning they must be designed, negotiated and entered into with the consumer in a fair and open way
  • They cause a significant imbalance between the rights of the retailer and consumer to the detriment of the consumer

Terms you can’t challenge

All of the contract terms (including core terms) must be in intelligible and plain language or they are open to challenge as unfair. However you could not make a challenge to terms for the following reason under either the old Regulations or the new Act:

  • By finding the same product elsewhere at a cheaper price than you have agreed to pay
  • Claim that a contract for an extended warranty is unfair because it offers less cover than an extended warranty you could have bought for a similar price
  • Challenge terms that you have negotiated directly with the seller as these would have been agreed between the parties in good faith. In effect you can only challenge standard terms and conditions that you believe to be unfair

Terms deemed to be unfair

Some of the most common unfair terms that are sneaked into standard terms and conditions and that can be challenged are the following:

 Unbalanced rights

Contract terms that confer greater rights to the seller / trader than to you as the consumer enjoy, such as where in an on-going contract the trader can change a term and condition of your contract with one-week notice, but you must give six months’ notice to terminate a contract.

 Excessive cancellation fees

These are terms that allow the trader to take too much of your money if you end a contract before it has run to its term. If you choose to end a contract using a clause in the terms and conditions that allow you to do this, the trader can claim for administration and marketing costs and for any work they had started and loss of profit. They cannot charge for punitive damages, such as paying up what you would have expended until the end of the natural life of the contract.

 Changing goods or services

A trader cannot have a term that allows them to change significantly what you are buying without giving you the chance to withdraw from the contract. For example, if you order timber frame windows for your house and want matching doors, the trader cannot decide to give you PVC doors and timber frame windows, without giving you the chance to cancel your order and get a refund.

Changing the price

The seller’s terms and conditions may state your order is accepted only when it starts fulfilling the order from its shelves and you’ll be charged the price of the goods at that time. However, a contract term that states you must pay a higher price if prices rise after you’ve ordered could be considered unfair.

 

Of course companies will try new ways to circumnavigate the legislation and these are only ever struck down when challenged, so while these are current terms that are able to be challenged, there may be others and we may revisit this subject again.

However the basic rule of thing would be to view against the criteria detailed above, particularly against being balanced, because these are the easiest terms to try and marginally skewer to have that unfair advantage.

Advertisements

The Consumer Rights Act

In the last 20 years how we live and conduct our lives has changed immeasurably as a result of technology. We send documents around the world in seconds, share documents across continents on servers and “clouds”, can have real time video conversations, can buy or sell just about anything almost anywhere in the world. Like most things that happen quickly our elected leaders are slow to begin the catch up to close off loopholes for the unscrupulous.

Finally on the 1st October 2015 in the United Kingdom the catch up began with the passing of the Consumer Rights Act.

The Consumer Rights Act replaces three major pieces of consumer / services legislation, The Sale of Goods Act [1979], Unfair Terms in Consumer Contracts Regulations [1999] and The Supply of Goods and Services Act [1982]. This is the biggest shake-up in consumer law in a generation and was introduced to simplify, strengthen and modernise the law.

Product quality 

As with the Sale of Goods Ac all products must be of satisfactory quality, fit for purpose and as described under the Consumer Rights Act. The act has also caught up with digital content which must also meet the following standards:

  • Satisfactory quality   – Goods shouldn’t be faulty or damaged when you receive them to the test of what a reasonable person would consider satisfactory for the goods in question. For example, bargain bucket products won’t be held to as high standards as luxury goods.
  • Fit for purpose – The goods should be fit for the purpose they are supplied for, as well as any specific purpose you made known to the seller before you agreed to buy the goods.
  • As described – The goods supplied must match any description given to you, or any models or samples shown to you at the time of purchase.

 Digital content

Digital content is defined as “data which are produced and supplied in digital form”.

Like “physical” goods it must conform to the standards detailed above as well. If the digital content does not conform to these criteria, you have the right to a repair or replacement of the digital content you’ve purchased.

If a repair or replacement is not possible or doesn’t fix the situation, you can ask for a price reduction which can be up to 100% of the cost of the digital content. Further the seller has to compensate you if any device or other digital content you own is damaged as a result of the digital content you’ve downloaded. An effective consequential loss clause.

This applies where that damage would not have occurred had ‘reasonable care and skill’ been exercised in the provision of the digital content, even if that content was provided free of charge.

Digital content covered by the Consumer Rights Act include:

  • Any digital content for which you have paid for (money, gift card or with credits)
  • Any free digital content supplied with goods, services of other digital content for which you purchased. For example, a digital programme you need to download in order to watch a paid-for online streaming service.
  • Any free digital content not usually available for free unless you purchase it or the goods, services or digital content it’s supplied with. For example, a smart TV or any other product with digital content pre-installed.

Delivery rights

The seller is responsible for goods until they are in your physical possession or in the possession of someone appointed by you to accept them. This means that seller are liable for the service provided by any couriers they employ, the delivery company or its agents (Drivers etc) are not liable.

There is a default delivery period of 30 days during which the retailer needs to deliver unless a longer period has been agreed.

If the retailer fails to deliver within the 30 days or on the date that has been agreed, you can do the following:

  • If your delivery is later than agreed and it was essential that it was delivered on time, then you have the right to terminate the purchase and get a full refund.
  • If the delivery isn’t time essential but another reasonable delivery time can’t be agreed, you’re also within your right to cancel the order for a full refund.

Supply of a service

The term ‘service’ covers a wide variety of services including large and small-scale work you might have carried out. This can be from a small repair carried out with no written details or the installation of a new bathroom in your home, to a manicure or major construction work. What is common to all of them however is they require you to enter into a contract.

Services can be provided alone, e.g. a repair at your home to a computer that requires no parts or may be provided with goods, e.g. supply and fitting of a fireplace.

 What is a service?

Examples of services provided without goods can include:

  • Home improvements
  • Dry cleaning
  • Work done by professionals, such as Web Designers, Solicitors & Accountants
  • Entertainment

Examples of services provided with goods include:

  • Home improvements involving building and decorating work
  • Double glazing
  • Repairs to goods where parts are replaced e.g. motor vehicle repairs
  • Fitted kitchens or bathrooms

In the examples above the service contract is governed by the Consumer Rights Act and can be relied upon as a remedy and as protection should anything go wrong.

The rules mean that all contracts for services must do the following:

  • The person carrying out the services must perform the service with reasonable care and skill.
  • Information which is said or written is binding where the consumer relies on it.
  • Where the price is not agreed beforehand, the service must be provided for a reasonable price.
  • Unless a particular timescale for performing the service is set out or agreed, the service must be carried out in a reasonable time.

If the service you’re provided does not satisfy these criteria, you’re entitled to the following remedies under the Consumer Rights Act:

  • The person carrying out the services must either redo the element of the service which is inadequate or perform the whole service again at no extra cost to you, within a reasonable time and without causing you significant inconvenience, or
  • In circumstances where the repeat performance is impossible or cannot be done within a reasonable time or without causing significant inconvenience, you can claim a price reduction. Depending on how severe the failings are, this could be up to 100% of the cost and the trader should refund you within 14 days of agreeing that you’re entitled to a refund.

 Supplying a travel service

After the 1st October 2016 where you have purchased a travel service (train, coach or ferry) this must be provided with reasonable care and skill.

If the service you’ve received falls way below the standard you’d expect, you may be entitled to claim a full or partial refund as well as for consequential losses.

Unfair contract terms

It is now easier to challenge hidden fees and charges under the Consumer Rights Act. The key terms of the contract, including price may be assessed for fairness unless they are both prominent and transparent. Terms which are not fair are not automatically binding on you but you may still rely on them if you choose to do so.

 Unfair terms

Some examples of terms that may be unfair under the Consumer Rights Act include:

  • Excessive early termination charges
  • A clause that tries to limit your legal rights
  • Fees and charges hidden in the small print
  • Disproportionate default charges

Having unfair contract terms removed

If you believe a contract term is unfair, you should complain to the other party. However where they do not agree before breaking the terms of the contract you should seek proper legal advice.

A final resort would be to take the other party to court. The court will decide whether a term is unfair and if they rule in your favour you may be able to ignore the term or even cancel your contract without having to pay a cancellation fee.

The commercial impacts

While this post details day to day life changes that the new legislation has brought about in the commercial world the key element when undertaking a service such as designing a railway or road is governed by the act. That is level of skill and care required, which is “reasonable skill and care.” Often in a draft the employing party will require “all skill and care”, “utmost skill and care” and any number of other iterations of this. But the reality is that all of the required tests and standards required are contained in the Consumer Rights Act are those required (and no more) in a contract.